with wasn't so, and wanted her to leave the | Clyde told him that would never do, and I state. She said she wouldn't leave the state left them at that time and don't know what and would not sign the papers stating that it else transpired. A while after that they callwasn't, and said that it was so. I don't re-ed me to witness trade that they had made, member anything else that occurred, I don't and Clyde was to give Mr. Vaden $750 for believe. He had a paper there with him for him not to employ an additional attorney and her to sign; I do not know who wrote it, but $1,500 if he could get the case dismissed. it was typewritten. I only have his word for He was to pay him $750 down that night, who wrote it; he said their lawyers wrote it. take it to Hillsboro, and I was to be given When we came back he made a report, but I $750 to hold until the case was dismissed, was not with him. I do not remember under and, if it was dismissed, it went to Mr. what circumstances the fourth trip was Vaden, and, if not dismissed, it went back to made, but Clyde and I made it; on the fourth Clyde. That was the agreement made betrip I met Clyde in Ft. Worth. I went from tween them, in my presence, and they called nere to Ft. Worth; that was my instructions me to witness it. There was nothing said that I was to meet him in Ft. Worth. He about where the money was to come from, had given me my instructions before I start- only Clyde was to deliver it at Hillsboro that ed. He gave me the instructions personally; night. Clyde went to a bank over on the he told me. I don't think he went ahead of west side of the square to get the money. me, but think he followed. He gave me the Clyde wanted me to go with him; and I told instructions out there on the place. I took him it wasn't necessary for me to go; and the car here in McKinney. I beat him to he said, 'Yes, the old man wants you to go;' Ft. Worth; I don't know whether he left and I presume he had reference to his fahere first or I left first, but I beat him to Ft. ther; and I told him all right, I would go; Worth. After he and I met in Ft. Worth and I says, 'Lets go;' and he says, 'Well, I we went to Hillsboro. He paid my expenses have got to see the old man before I can go.' on that trip, but I do not know how much it I saw him go to the bank; that is, Clyde, was; he gave me $8 to start with here, and and his father was with him. The defendant after I met him in Ft. Worth he paid all ex- went with Clyde to the bank. When Clyde penses from there on, tickets, etc. When we came out of the bank he came over on the went to Hillsboro that time we went out to corner where I was, and slapped his pocket, Mr. and Mrs. Vaden's house again, and he and says, 'I have got her; let's go.' We went had another paper for her to sign, and she back upon the hill that time to leave and left refused to sign it. I do not know what the at the nursery south of town. Mr. Vaden paper contained. Practically the same things was not with us; he had already left. I do were said that were said on the other trips: not know where he took the car. He and I he still wanted her to leave the state, and did not go back together. Clyde and I left she refused to go. We did not accomplish here between 4 and 5 o'clock, the best of my anything by that fourth trip. He and I came recollection, and got to Hillsboro that night back together, and I presume when we came about 11 o'clock, and went to Mr. Vaden's back Clyde reported. I do not remember house. They were up when we got there; how many trips we made in all. On the fifth they were fussing, and Mrs. Vaden was crytrip, I think it was the fifth trip, I am not ing; and Clyde asked her what the trouble positive, but I believe it was the fifth trip was; and she told him that Mr. Vaden had that we went over there to see about getting written a letter, and she was to copy it, and it dismissed that Mr. Vaden came back with he had put a phrase in there that she didn't I am almost sure it was the fifth trip want, that wasn't so, and she didn't want to that we went over there that Mr. Vaden came copy it; and they talked over that a while, back with us. Clyde and I went on that fifth and finally got it squared up; and Clyde and trip and went from here. I do not know Mr. Vaden went out on the front and talkwhether we took the car here or at Melissa ored a while, and Mr. Vaden come back to the on the hill. By on the hill I mean up there by the nursery on the hill; we took the car down there one time. When we took the car up there on the hill by nursery we went around kind of back way to get to that place from the square (I don't know what the street was), and we walked. That is, Clyde and I did that, and took the car down there. We went around the back way to take the car. Clyde paid my way down there that time. We accomplished practically nothing on that trip, only got Mr. Vaden to come back with us. Vaden failed to get the case dismissed; the county attorney would not dismiss it; and Vaden made the remark that he guessed the thing was all off, that he us. house, and Clyde called me out, and says, 'What do you think about the way this woman is doing? and I says, 'I don't know;' and he says, 'Do you think she will go to court?' and I says, 'I think she will;' and he says, 'What do you think about Vaden; do you think he will do what he says he will?' and I says, 'Yes, I think he will; I believe he is a truthful man.' And he says, 'I am going to take a shot at the dark; I am going to let him have the money;' and he handed the package to me, and says, 'Give this to him.' And I motioned to Vaden, and he followed me into the dining room, and I laid the package on the table." It contained $750. He also testified that he went to Oklahoma, to get out of the way so the case could not be tried that term, and appellant paid his expenses; that at another term of court Clyde gave his wife $25, and she got out of the way. All this testimony was objected to by appellant; but as this witness testified that appellant, in his talk with him, told him to do whatever his son Clyde said, that Cly'de was the boss, and it further appearing by the record that appellant delivered the $750 to Clyde, and had paid the witness' expenses at times in person, furnished clothing, etc., the testimony was admissible. At appellant's request the court instructed the jury: “You are instructed that before you would be entitled to consider or weigh in any way the evidence of any act, statement, or declaration made or done by the witness Matthews at the instance or under the instructions of Clyde Burge, and not in the presence of the defendant, you must find and believe from the evidence beyond a reasonable doubt that the defendant, Ed Burge, told the said witness Matthews in substance for him to follow the instructions of Clyde Burge; that he (defendant) was backing Clyde Burge; and, if you have a reasonable doubt as to whether such statements was made by the defendant, then you are instructed that you will not consider as evidence in this case any statement, act, or declaration made or done by the witness Matthews at the instance or request of Clyde Burge not in the presence of the defendant, Ed Burge." And at his request he further instructed the jury: "You are instructed that before you would be entitled to weigh or consider any of the acts, statements, or declarations of Clyde Burge offered in evidence in this case, not made in the presence of the defendant, Ed Burge, you must find and believe from the evidence, beyond a reasonable doubt, that the defendant, Ed Burge, stated to the witness Matthews in substance for him to follow the instructions of Clyde Burge, and that he (defendant) had given Clyde Burge instructions, and that he would stand behind whatever Clyde Burge did; and you are instructed that, if you have a reasonable doubt as to whether such statement was so made, then you are instructed that you cannot and will not consider any statement, act, or declaration of the said Clyde Burge, made out of the presence of the defendant, for any purpose whatever in this case." These two charges it was proper to give, and, the court having given them, there was no error in admitting the testimony of Mr. Matthews that was objected to. Neither did the court err in refusing to give the two charges instructing the jury not to consider this testimony for any purpose. If his son Clyde was acting for appellant, using money given him by appellant, and appellant had prior thereto told the witness, that Clyde had charge of the matter, that he (appellant) had made him his agent, and the witness was acts done under the direction of Clyde would be admissible against appellant. [10] Neither was it proper for the court to instruct the jury that, if they found that appellant had carnal knowledge of Mrs. Vaden, then her consent would be presumed until the state proved, beyond any reasonable doubt, that she used all means in her power to prevent it. As hereinbefore stated, there was no evidence to show an act of carnal intercourse by consent; yet, out of abundance of precaution in addition to instructing the jury as to presumption of innocence and reasonable doubt in appellant's favor, he also instructed the jury: "If you find and believe from the evidence beyond a reasonable doubt that the defendant, Ed Burge, had carnal knowledge of the said Ophelia Proctor on the 19th day of May, 1911, but you have a reasonable doubt from the evidence whether or not such carnal knowledge was without her consent and against her will, or if you have a reasonable doubt from the evidence whether or not said Ophelia Proctor used every means within her power to prevent defendant from having intercourse with her, if he did, taking into consideration the relative strength of the parties and all of the other facts and circumstances in the case, then in either event you will acquit the defendant and say by your verdict not guilty." The only other special charge requested was fully covered by the court in his main charge. [11] It appears from the record that Mrs. Vaden (then Mrs. Proctor) advertised for a position as housekeeper; that, in answer to that advertisement, appellant called to see her and a trade was made. In detailing the conversation she said, as shown by a bill: "At the time that I made the arrangement with Mr. Burge to go to his place as his housekeeper, I showed him my recommendation and asked him for recommendations, and the man that was a writer, I suppose for the paper, recommended him very highly; that is the only one that I remember that recommended him. I told Mr. Burge the reason I wanted recommendations was that I was a lady and wanted to go to a nice place." This testimony was offered to show why the prosecuting witness was on appellant's place; that she testified that appellant was highly recommended to her certainly was not hurtful but beneficial to appellant; and the statement that she in that conversation told him she "was a lady and wanted to go to a nice place" would have no tendency to prove that appellant subsequent to that time raped her. It was but a recitation of a conversation that took place between them at the time of her employment, and the same facts were in substance testified to by appellant, and this bill presents no reversible error. [12] The only other question presented in the able and lengthy brief is that, while the private prosecutor was addressing the jury, Mrs. Vaden was sitting in plain view and money, if any was recovered, but only that Matthews would testify that, if he was entitled to a child's part of the $750, he also thought he ought to be entitled to a child's part of any amount that might be recovered in the suit. It having been shown that there was no agreement to pay him anything, and no legal obligation sought to be shown, but only that as Vaden had voluntarily given him part of the money paid to him to keep Mrs. Vaden from court, and get her to request the county attorney to dismiss the case against appellant, he thought if he was entitled to that amount he thought he ought to be entitled to more, if money was recovered in the suit, would have no bearing on this case, nor on the weight of his testimony. shown that at the former trial she had cried, and appellant's counsel called the court's attention to this matter and asked that she be not permitted to remain in the presence and sight of the jury. The court, in approving the bill, states that Mrs. Vaden did cry sufficiently loud for the jury to have heard her, but not loud enough nor in a manner to interrupt the orderly proceedings of the court. It is well known by all members of the bar, and all the courts, that witnesses both for the state and defendant gather about during the argument of counsel; that they sometimes cry, and even counsel, in presenting the cases to the jury, are sometimes moved to tears. And at times eloquent counsel have even elicited tears from the jury trying the case; but, if these demonstrations are not | Had appellant stated in the bill he expected of that character as to disturb the proceedings of the court, it is seldom the court seeks to control such matters. As qualified and approved by the court, it is a matter that we would not feel called upon to hold that the trial judge had abused the discretion confided by law to him. There are other matters presented by the record, but these are all the questions deemed of sufficient importance to be included in appellant's brief; and, while we have not discussed the others, they are questions of similar import to those herein acted on, and after reading each of them we are of the opinion no reversible error is presented by this record. Mrs. Vaden testified appellant came up behind her, grabbed her hands, pinioned them behind her, threw her on the bed, and outraged her; and the judgment is affirmed. DAVIDSON, J., dissents. On motion for Rehearing. HARPER, J. Appellant has filed a lengthy motion for rehearing and an able argument thereon. In the first ground it is insisted that we erred in holding that the court committed no error in sustaining the objection to the following question to the witness Matthews, "Well, don't you think that, if you were entitled to a child's part of that $750, you would be entitled to a child's part of the $50,000, too?" claiming that it is always permissible to introduce testimony to impeach the credit of a witness. This is no doubt true, but in this case this witness had already testified about being given one-fourth of the $750 paid by Burge to Mr. Vaden to keep his wife away from court; and in answer to the question, "Well, do you know whether you are going to get a child's part of that $50,000 that she sued for?" he had answered, "No, I do not know. I do not know that they are going to get it, and do not know anything about it." Appellant does not state that he expected to prove that any agreement had been entered into whereby to prove, directly or indirectly, circumstantially or otherwise, that there was an agreement or understanding of any character that Matthews was to receive any portion of the money, if any was recovered, there would be merit in his bill; but the question propounded, and to which objection was sustained, nor the answer stated he expected to be made to the question, would have no such bearing. The wide range the court had already allowed in the cross-examination of this witness was amply sufficient to show any interest or bias he might feel or have in the case. [13] The authorities cited by appellant on this question do not sustain his contention, but all of them only go to show that the motive of a witness, his interest or bias, may always be shown, and this is unquestionably the law; but the question here propounded would throw no light on his motive, nor his interest, nor that he was biased in favor of the prosecuting witness. [14] Appellant for the first time in his motion for rehearing in this court claims that the court erred in not instructing the jury that Mrs. Vaden and J. M. Matthews were accomplices, asserting that as it is shown that Burge paid $750 to Vaden to get Mrs. Vaden to write a letter asking that the case be dismissed, and Vaden had given Matthews one-fourth of that amount, this made them accomplices, and the court should have so instructed the jury. No such contention was made in the court below at the time of the trial, nor in the motion for a new trial; and, if the court should so have instructed the jury, it would be too late to raise such question while the case is pending in this court on motion for rehearing. Chapter 138, Acts 33d Legislature, p. 278. However, this testimony would not raise such an issue. [15] Mr. Branch, in his work on Criminal Law, correctly states the law to be: "Witness is not an accessory or accomplice, and no charge on that subject is required from the fact there is evidence that the witness offered or accepted money to leave the state, or desist from prosecution; the fact that one compounds a felony does not of itself make such INJURY TO SERVANT-NEGLIGENCE OF MAS- ed"-citing Chenault v. State, 46 Tex. Cr. 13. MASTER AND SERVANT (§ 97*)—ACTION FOR R. 355, 81 S. W. 971; Robertson v. State, 46 Tex. Cr. R. 442, 80 S. W. 1000; Chitister v. State, 33 Tex. Cr. R. 638, 28 S. W. 683; Smith v. State, 51 Tex. Cr. R. 141, 100 S. W. 924; Davis v. State, 52 Tex. Cr. R. 335, 107 S. W. 855. The only case sustaining appellant's contention is that of Gatlin v. State, 40 Tex. Cr. R. 116, 49 S. W. 87, but that case was shortly thereafter overruled in the Chenault Case, supra, and the Chenault Case has been followed since that time. The second ground of the motion is that we erred in holding that the witness could testify whether or not Mrs. Vaden was in a nervous, distressed condition when they saw her. We discussed this so fully in the original opinion we do not deem it necessary to do so again, and would not do so except that appellant notes one question and answer not taken cognizance of by us. After Mrs. Vaden had testified to her condition, after she claimed she had been assaulted, she was asked how long this condition lasted, and she said for about a week. This and other questions in the case are discussed in the case of Jacobs v. State (Tex. Cr. App.) 146 S. W. 558, and it was there held that it was permissible to testify that, from the injuries received, the lady who had been raped was confined to her bed for two or three weeks. All the other questions in the motion for rehearing are fully discussed in the original opinion; and the motion for rehearing is overruled. DAVIDSON, J. Without discussing the legal questions urged for reversal, I am persuaded there is wanting that degree of force necessary to constitute rape by force. It may be difficult sometimes to draw the line between force and consent, but it is too thin here for conviction. having stopped his train under a viaduct, stuck Plaintiff, an engineer upon a work train, his head out of the cab, and was looking back wards when the engineer of a passenger train, within four or five feet of plaintiff's head, renderwhich was passing, began blowing the whistle ing him deaf in one ear and partly so in the other, and injuring his eyesight. Held, that the accident was such an extraordinary one that defendant in the exercise of ordinary care was not bound to foresee and guard against it, and hence was not negligent. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. § 163; Dec. Dig. § 97.*] Appeal from Circuit Court, Grant County; W. H. Evans, Judge. Action by H. A. Copeland against the St. Louis, Iron Mountain & Southern Railway Company. From a judgment for plaintiff, defendant appeals. Reversed and dismissed. H. A. Copeland instituted this action against the St. Louis, Iron Mountain & Southern Railway Company to recover damages for personal injuries alleged to have been sustained by him while in the employment of the defendant company. The facts are as follows: For a mile or more south of the station at Little Rock, Ark., the line of the defendant railway company runs through the corporate limits of the city and across certain of its streets. Some of the streets have overhead crossings, and some cross the railroad on grades. The railroad company has double tracks for several miles south of the station. At Twelfth street, where it crosses the railroad, there is an overhead crossing, commonly called a "viaduct." The overhead crossing is a bridge 24 feet above the track and about 20 feet wide. It has a steel approach and steel girders. The girders rest on concrete abutments on either side of the cut through which run the tracks of the railroad company. From the center of one track to the center of the other is 133/10 feet, and from the inside rail of one ST. LOUIS, I. M. & S. RY. CO. v. COPE- track to the inside rail of the other track is LAND. (No. 302.) (Supreme Court of Arkansas. May 4, 1914.) PLIANCES AND PLACE TO WORK-CARE RE- A master must exercise ordinary care to provide his servants a safe place to work and safe appliances; the test being what a reasonably prudent person would have ordinarily done in such a situation. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192; Dec. Dig. §§ 101, 102.*] 2. MASTER AND SERVANT (§§ 101, 102*)-APPLIANCES AND PLACE TO WORK-DUTY OF MASTER-PRECAUTIONS. A master is only required to use such reasonable precautions to prevent accidents as would have been adopted by prudent persons prior to the accident. [Ed. Note.-For other cases, see Master and Servant, Cent. Dig. §§ 135, 171, 174, 178-184, 192: Dec. Dig. §§ 101, 102.*] 86/10 feet. The cut is deepest at Twelfth street, and begins to become more shallow at Tenth street. On the 3d of January, 1913, the plaintiff was engineer on a work train, whose engine was headed north; that is, towards the station at Little Rock. He stopped the train with the engine right under the Twelfth street viaduct, for the purpose of unloading some chat. The foreman in charge of the work train gave him a signal, and he stuck his head out of the cab window to see if the foreman got on the footboard. While in that position, a passenger train from the south, coming into Little Rock, passed on the other track. While the engine of the passenger train was passing the plaintiff's engine, the engineer on the passenger train was blowing his whistle. The plaintiff testified that he was only about five or six feet away from the whistle on the passenger, but that it was a little above his head; that as soon as the sound struck his ears it sounded like somebody had hit him on the head, and that his ears commenced to roar and rattle from that instant; that for about a week it seemed like his head was full of water; that afterwards there was a popping and cracking just like you hear in a telephone receiver, and that he finally became deaf in his left ear; that the hearing in his right ear is defective; that he cannot see out of his left eye, and cannot see to read out of his right eye. A physician who examined him testified that plaintiff was suffering from traumatic neurosis, and that he had a very severe form of it; that this might be caused by a severe shock or injury. Other witnesses for the plaintiff stated that the whistle was blown unusually loud on that morning. Physicians who examined plaintiff testified for the defendant that they had examined the plaintiff's left ear, and that it appeared to be entirely normal, and that the drum of the ear did not appear to be in any way injured. They also stated that his eyes did not appear to be injured. Other witnesses for defendant testified that the whistle which plaintiff alleges caused the injury was a standard passenger train whistle known as a "chime whistle," such as is used on all first-class railroads in this and other states. The physicians who testified in favor of the defendant stated they believed from the examination they had made of plaintiff that his injuries were feigned, and stated that they had never known or heard of such an injury having been inflicted upon any one by the blowing of a whistle under the circumstances described by the plaintiff. Other evidence will be stated or referred to in the opinion. The jury returned a verdict for the plaintiff, and the defendant has appealed. only required to use such reasonable precautions to prevent accidents as would have been adopted by prudent persons prior to the accident. After an accident has occurred, it may be easy to see what would have prevented it, but that of itself does not prove, nor tend to prove, that reasonable or ordinary care would have anticipated and provided against it. Labatt's Master and Servant (2d Ed.) vol. 3, §§ 1042, 1045. See, also, 26 Cyc. 1092, 1093; Ultima Thule, A. & M. Rd. Co. v. Benton, 86 Ark. 289, 110 S. W. 1037; St. L., K. & S. E. Rd. Co. v. Fultz, 91 Ark. 260, 120 S. W. 684. [3] Tested by the above legal principles, is the plaintiff entitled to recover in this case? It may be said here that there is in this case no presumption created by statute to take the place of proof of negligence. The undisputed proof is that the whistle on the passenger engine, which plaintiff testified caused his injury, was a standard chime whistle, such as is used on all first-class railroads in this state, and such as is in general use on all first-class railroads in other states. It is true some of the witnesses for the plaintiff said that it was a louder whistle than the others in use on the defendant's engines, but they did not deny that it was a standard whistle and in general use by all first-class railroads. The court told the jury that under the undisputed evidence the whistle on the passenger engine was such whistle as is used by careful and competent railroad companies, and that it was not negligence on the part of the railway company to use the whistle. There was no evidence tending to show that the engineer wantonly blew the whistle. That is to say, that he blew it for the purpose of scaring or annoying the plaintiff. Some of the witnesses for the plaintiff say that it was not necessary to blow the whistle at the place where plaintiff claims that he was injured. The Twelfth street viaduct is two blocks from Tenth street, which had a grade crossing. The passenger train was going in HART, J. (after stating the facts as that direction. Section 6595 of Kirby's Diabove). [1, 2] The general rule is that a mas-gest imposes upon railroads the duty of sigter must exercise ordinary care to provide naling for crossings. It provides that a bell his servants a reasonably safe place in which and reasonably safe instruments with which to work. The test of a master's duty in furnishing appliances and a place to work is what a reasonably prudent person would have ordinarily done in such a situation. Oak Leaf Mill Co. v. Littleton, 105 Ark. 392, 151 S. W. 262. The duty of a master to exercise ordinary care to provide his servants a safe place to work requires that he shall anticipate all such dangers as will likely flow from the conditions of the place in which his servants work, and the appliances with which they are provided to work. But the master is not bound to foresee and provide against every possible accident. In other words, the duty imposed does not require the master to use every possible precaution E. B. Kinsworthy and T. D. Crawford, both of Little Rock, for appellant. Hoeppner & Young, of Little Rock, and W. R. Donham, of Benton, for appellee. be rung or a whistle blown at a distance of 80 rods from where the railroad crosses any road or street, and that the bell be kept ringing or the whistle blown until such road or street is crossed. Pursuant to this statute, the engineer blew the whistle to give warning of the approach of the train; and the act of blowing the whistle did not, of itself, constitute negligence. This brings us to the question of whether the situation of the parties made the blowing of the whistle an act of negligence. The plaintiff had stopped his engine under the viaduct, and was leaning out of his cab window looking backward, when the whistle was blown. He says the whistle on the passenger engine was a little above him, but was within about six feet of his ear when the engine passed. The plain |